Government’s Plan To Reform The Deprivation Of Liberty (DOLS) Process

When an individual is acting or likely to act in a manner that risks harm to themselves or to others, they can be deprived of their liberty by the NHS or by local authorities. They can be detained either for assessment (i.e. to diagnose that individual) or treatment (if the diagnosis has already been made).

The DOLS process

The aforementioned process is sometimes known as the DOLS process (referring to Deprivation of Liberty Safeguards), which may be imposed unilaterally on an individual under the Mental Health Act 2005 (Act). In such situations, the local authority or NHS Trust responsible will usually start Court of Protection proceedings so that the Court can declare:

• Whether the detention is lawful;
• Whether it should continue and for how long; and
• How far any restrictions should go.

Two or more medical professionals must usually agree that detention is necessary before it can take place. Whilst it is a very difficult decision to take, there is a risk that the power to detain an individual can sometimes be invoked as something of a knee-jerk reaction. It is not always clear that the treatment administered to the protected party in detention will benefit them, or whether viable alternatives exist without committing someone against their will into a hospital or facility.

Any deprivation of liberty imposed on an individual will always be reviewed in Court and prompt action in issuing Court proceedings is the norm to ensure that the detention takes place or no longer than is necessary. But acting rashly can leave local authorities and NHS Trusts vulnerable to damages claims by people unlawfully deprived of their liberty, which can also be a breach of the Human Rights Act 1998.

Reforms to the DOLS process

The Government is proposing various reforms to the current process. If these reforms are all brought into effect, then it is likely to result in fewer detentions, shorter periods of detention and greater scope for protected parties to be heard when their detention is under review.

The Government is proposing to do the following:

1. Raise the threshold for detaining someone – requiring those seeking it to show that it will provide the patient with a “therapeutic benefit” and not merely that the patient might harm him/herself or others;
2. Allow the patient themselves to nominate an individual who may be consulted in relation to their care and treatment (i.e. not necessarily their “next of kin”);
3. Impose a shorter timetable on detention cases being referred to the Mental Health Tribunal so that patients can challenge their continuation;
4. Require facilities to offer patients specific care and treatments in advance of being detained; and
5. Making sure that – in the case of autistic people and people with learning difficulties only – detention for assessment can only take place if there is a probable mental health cause for that individual’s actions.

There is some uncertainty over how far these proposals will go but if brought into effect, it is likely that protected parties will have more involvement in their treatment, and the ability to challenge a detention more rapidly. Arguably, protected parties should be involved in the process anyway as there is a requirement under Section 4 of the Act to encourage a protected party’s participation when decisions are being taken on their behalf.

The Government also drew a clear line in the sand by declaring that virtual capacity assessments for the purposes of imposing DOLS measures were not lawful. This reinforces the requirement that a medical practitioner is “in the room” with a protected party before deciding whether they should be detained.